e-Disclosure – cooperation, questionnaires and cloud

Yesterday I attended the 6th Annual e-Disclosure Forum at Canary Wharf in London, organized by the globe-trotting triumvirate of Chris Dale, Browning Marean and George Socha. It was a good program, with an audience comprising a mix of lawyers, litigation support professionals, IT practitioners, tech software and service providers and other assorted folks, like myself. It’s the second year I’ve attended and these were the key themes I picked up on:

Practice Direction 31B – not surprisingly this was a major issue throughout the day, considering may of those present for instrumental in drafting it, including Chris Dale and Senior Master Steven Whitaker (among others) and it only passed into the rules on October 1. For those that don’t know, 31B amended the rues of civil procedure in the UK (the rough equivalent of the Federal Rules of Civil Procedure in the US), as they pertain to the disclosure of electronic documents (which can of course include email and other forms of communications). One aspect of the changes is a questionnaire to be used in more complex cases that involve a large number of documents. Not only does it sound to us like a sensible way of helping to to contain and get parties prepared for the case management conference (meet and confer in US parlance), but quite frankly it could be useful starting point for organizations simply to looking to get their house in order to get prepared for future litigation.

Another key theme was the effect on recent UK cases on the way parties are now cooperating in case management meetings. One speaker, Jeremy Marshall, head of commercial litigation at Irwin Mitchell said that in his experience there’s a vast difference in terms of what happened before landmark cases such as Earles vs Barclays Bank in 2009 and the Digicel vs Cable & Wireless case in 2008 and what happens now. Companies know that if they don’t cooperate to make sure the necessary documents are disclosed, they could be penalized by the court, even if they win the case. For more on the Earles case and what it means regarding the destruction of documents see Chris Dale here.

Cloud. I had a lot of conversations with IT and legal people at the conference and they’re still not seeing the necessary granularity in service level agreements (SLAs) from cloud service providers. If you need to search your data for the purposes of e-Disclosure, it’s not clear in what format the data will come back to you or even if such a search is possible. That’s a bit of a deal-breaker, over and above any trepidation firms might feel about using cloud for any perceived security issues.

In general I detected a much clearer understanding on the part of US attendees of the issues in the UK market. Gone are the days it seems of assuming that the exhaustive e-Discovery process in the US is suitable without any alteration in the UK. The two countries obviously share a common law tradition, but like so many other things, there are distinct differences in the way litigation is done and that – aided in part by Chris Dale et al’s work – is now getting through to US vendors, which after all, dominate the market from the technology point of view.

Tips for next year to the organizers?

come up with a hashtag so we don’t write out ‘6th annual #eDisclosure conference’ in our tweets 😉

make the sessions a tad shorter

get a couple of additional panelists to mix it up a bit

But overall it’s the best way I know for taking the pulse of the UK e-Disclosure market in a single day.

We’ve also been active in this area ourselves recently with webinars on litigation readiness with Zylab and Katey’s participation on a Brighttalk webinar on cross-border eDiscovery. But most importantly, we have new e-Discovery research out in the shape of our cloud e-discovery [PDF]and cloud archiving [PDF] reports.